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COMMONWEALTH PENNSYLVANIA v. ROBERT BARNES (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT BARNES, APPELLANT



Appeal from the Order of the Court of Common Pleas of Phila. County, Trial Div., Criminal Sect., Denying Post-Conviction Relief as of Jan. Term, 1971, Nos. 856, 857 and 858.

COUNSEL

Marilyn J. Gelb, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents. Price, J., files a dissenting opinion.

Author: Per Curiam

[ 248 Pa. Super. Page 582]

Appellant's first trial, following a denial of his motion to suppress, resulted in a mistrial when the jury could not reach a verdict. Appellant's second trial, also before a jury, resulted in his conviction of burglary of a State Liquor store and aggravated assault. The resulting judgment of sentence was affirmed per curiam. Commonwealth v. Barnes, 223 Pa. Super. 705, 296 A.2d 53 (1972). This appeal is from a denial of PCHA relief. Appellant raises four claims of ineffectiveness of counsel. Three of these claims are without merit, but since the PCHA judge failed to consider the fourth claim, we remand for consideration of that claim.

I

Appellant alleges that his trial counsel, who also represented appellant on his first appeal, was ineffective. "[C]counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). The burden of establishing this claim is upon appellant. Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

[ 248 Pa. Super. Page 583]

A

Appellant's first claim is in two parts.

(1)

At trial a police officer testified that when appellant was arrested, at the residence of his uncle, a pistol was found near his feet. This pistol was introduced into evidence at the second trial; it had not been introduced into evidence at the first trial. At the PCHA hearing appellant testified that the pistol had not been near his feet, but in an upstairs bedroom with his aunt.*fn1 Appellant claims that counsel was ineffective for failing to call his aunt to testify at trial. However, appellant did not call the aunt to testify at the PCHA hearing. Appellant further admits that he is unaware of her whereabouts, so it is unclear that she would ever be able to be called as a witness. Trial counsel is deceased, and therefore no rebuttal of appellant's testimony is possible. Appellant's self-serving, ...


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